125 U.S. 171
8 S.Ct. 829
31 L.Ed. 642
DUTCH et al.
March 19, 1888.
T. A. Lambert and Enoch Totten, for appellant.
S. S. Henkle and Francis Miller, for appellees.
This is a suit in equity, brought in the supreme court of the District of Columbia, by persons claiming to own a lot of land in the city of Washington, as the heirs at law of one Jenifer, and as devisees under his last will and testament. The bill alleges that a deed of trust, purporting to have been executed on the 8th of July, 1875, by Jenifer to R. P. Dodge and P. A. Darneille, conveying the land to them as security for the payment of a promissory note, dated that day, purporting to have been made by Jenifer, payable two years after date, for $1,000, with 10 per cent. interest until paid, payable semi-annually, to John T. Hall or order, was a forgery, and that the note was also a forgery. The deed of trust bears the notarial certificate, dated July 8, 1875, with the notarial seal, of James Nicholas Callan, a notary public, certifying that Jenifer, the party to the deed, personally appeared before him in the county of Washington, being personally well known to him to be the person who executed the deed, and acknowledged it to be his act and deed. The deed was rc orded on the 10th of July, 1875, in a book of the land records for Washington county. The note and the deed of trust were each of them signed by Jenifer by making his mark, and each of them bears the signature of Callan as a witness. The bill alleges that Jenifer was never indebted to Hall in any sum, and never received any money from Hall; that Jenifer never signed or made his mark to the note or the deed of trust, or authorized any one to do so, and never acknowledged the deed to Callan; and that on the 29th of May, 1882, the two trustees, having advertised the premises for sale, sold them at public sale to one Cissell, and executed to him a deed of the premises, which has been recorded in the land records of the district. In an amendment to the bill it is alleged that the note and the deed of trust came into the possession of one Brittannia W. Kennon, who held them on the day of the sale, and ordered the sale. The two trustees, and Hall, Cissell, and Kennon, are made parties to the bill. The prayer of the bill is that the deed of trust and the note, and the deed to Cissell, be declared null and void, and be canceled, and that Cissel reconvey the premises to the plaintiffs. Dodge, Darneille, and Cissel each answered the bill by a separate answer, denying its allegations as to the alleged forgeries, and averring that the note and the deed of trust were genuine and valid instruments. The plaintiff's joined issue, by replication, with the defendants Dodge, Darneille, and Cissel. Proofs were taken on both sides, and the case was heard before the court in special term, which dismissed the bill. On an appeal by the plaintiffs to the court in general term, it reversed the decree of the special term, and adjudged the note and the deed of trust, and the deed to Cissel, to be void, and directed an account, in favor of the plaintiffs, of the mesne profits received by Cissel. From the decree of the general term Cissel has appealed to this court.
The issue is one entirely of fact, in which the burden of proof is upon the plaintiffs. Callan, the notary public, testifies with particularity to the circumstances attending the execution of the note and of the deed of trust in his presence, and to the acknowledgement of the latter before him, and to his signing his name as a witness to the execution of each. It is also satisfactorily shown that the $1,000 secured by the note passed from the lender to the agent of the borrower. It would serve no good purpose to discuss the evidence at length. The integrity of the transaction is not satisfactorily impeached. The decree of the court below, in general term, is reversed, and the case is remanded to it, with a direction to affirm, with costs, the decree of the court in special term.